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Roundtable on Range and Readiness Preservation Initiative

Presenters: Ray DuBois, Deputy Under Secretary of Defense for Installations and Environment; Dr. Paul Mayberry, Deputy Under Secretary of Defense for Readiness, and Ben Cohen, Deputy General Counsel for Environment and Installations April 06, 2004 2:35 PM EDT

Roundtable on Range and Readiness Preservation Initiative

DuBois: (Fed in progress) -- I can address, of course, the issues pertaining to our environmental stewardship: current record, past record and what we hope to accomplish in the future.

Ben Cohen, the legal eagle, deputy General Counsel for Environment, can certainly address any and all technical issues about how the amendments were actually crafted and why, which I think is important because anyone who reads the words that we have used, the language that we have used will recognize how narrowly drawn they are and focused strictly on readiness and military activities. And in the case of these three particular amendments on operational ranges -- not closed ranges, not BRAC [Base Realignment and Closure] properties, not totally used defense sites, but only with respect to operational ranges.

So, Paul, why don't you just spend a couple of minutes and just reflect upon the readiness-related issues.

And today the Department of Defense delivered the balance of its Readiness and Range Preservation Initiative to the Hill as part of this year's Defense authorization. As you recall, RRPI, or the Readiness and Range Preservation Initiative, began with eight provisions that constitute sort of a combination of narrowly focused measures really to enhance both the readiness of our forces as well as to make sure that we maintain our commitment to environmental stewardship. Five of those eight provisions were passed and enacted into law, and the three specific provisions that are part of this year's package are related to RCRA, which is the Resource Conservation and Recovery Act; CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act; and the Clean Air Act.

The RRPI package is all about readiness, and that is the preparation of our forces to fight and win our nation's war on a moment's notice and really anywhere in the world. We are the best military in the world, bar none, and the reason for that is that we train more often, we train to higher standards, and most importantly we train under realistic combat conditions, and that includes and emphasizes live-fire training and the testing of our weapons systems.

The department, in this legislative package, is really seeking clarification. Where these three statutes are being applied beyond their original intent, we seek to clarify that these laws cannot be used to close down operational testing and training ranges. These ranges have specifically been set aside for the purpose to train our military and to test our weapon systems, and live fire is a normal and expected use of these land, sea and air spaces.

The department faces litigation that seeks to establish that the military munitions are considered solid waste or releases that would be subject to regulations under environmental law. These expanded definitions are a stretch too far, but a litigation, in reality, that we face.

Briefly, let me just try to give you an idea of what RCRA and CERCLA provisions are, and equally important, what they are not. Our provisions apply to only operational ranges, not closed ranges, not transferred ranges or formerly used defense sites, or transferring ranges -- those in the former BRAC process. Our provisions apply only to military readiness activities and not to other DOD activities, such as industrial areas, maintenance areas, and even contract facilities. These provisions do not apply to traditional waste management, to even include open burn, open detonation, even if they involve munitions at operational ranges. They do not apply to munitions that migrate off ranges. We would still, as a department, be held accountable under these statutes for munitions, constituents going outside the boundaries of operational ranges.

With respect to the Clean Air Act, it's not a question of compliance or not but, rather, a question of time to achieve the act's general conformity requirement. And let me just briefly explain that.

In order to ensure that our military forces are strategically located, are best positioned to train routinely in an optimized fashion, and even to deploy new weapon systems, it is necessary for the department to properly position its forces and its assets in the U.S. and even around the world. Our legislative provisions will provide more flexity under the Clean Air Act by allowing both Department of Defense and the states a three-year period to come into conformity. Again, this provision applies only to military readiness activities and not to other support activities or even relocation- related construction. In other words, the Department of Defense and states can work together to either accommodate or offset emissions from flying and training -- let's use the Joint Strike Fighter as an example -- within a three-year period. But any other activities that would be related to the Joint Strike Fighter, such as runway constructions, hangar construction, the building on the post of increased mass transit, waste-water treatment facilities, even power generation that all would be required because squadrons and their families would relocate to these areas would not fall under this provision.

Showing immediate and unquestionable readiness impacts for these provisions is really what these efforts are all about. I'll admit that they are somewhat prescriptive as we try to go forward here. But as prudent managers in the Department of Defense, it comes down to a matter of timing, and also that we can and do assess risk.

There are immediate and unquestionable readiness risks associated with how these three environmental statutes are being interpreted. Past court cases have threatened to close down our military training, and that readiness risk is unacceptable whether we are a nation at war or a nation preparing for war.

I never would have thought that the Migratory Bird Treaty Act of 1918 would ever be put to a use to restrict our military testing and training activities. But this was exactly the case of threatening the live-fire training for the Kitty Hawk battle group as it was preparing to return back into Afghanistan during Operation Enduring Freedom. This threat to military training was not completely resolved until the Congress took legislative actions.

We as a department cannot wait for a train wreck. We must be prudent managers. And having consulted extensively over the last two years with our interagency counterparts, state governments and environmental stakeholders, we now seek to codify the past practices of this and previous administrations, as well as many of the positive actions that have been taken by the states. We have listened. We have refined our proposals, and we now seek to work with the Congress to clarify the intent and the applicability of these environmental statutes being applied to the limited and focused area of military readiness activities. Ray?

DuBois: Paul certainly gave you the definitive explanation as to why we have asked Congress to help us out. It is true this is the third year we've asked for us. You could logically say that Congress didn't embrace it for the first two times around, why do you expect it to embrace it this time? The real issue in front of us is, is it any less important today than it was three years ago when I first introduced it -- when the secretary first introduced it to Congress? The answer is a resounding no; it is as important as it ever was.

With respect to something that has always bothered me about how our environmental initiatives have been characterized -- and you all who have covered this over the past several years have read the headlines too -- "Defense Department Requests Broad Exemptions." I would certainly question the use of the term "broad" and the use of the term "exemption." As Paul said, it's focused solely on operational ranges and solely on the fact that we think it's improper to designate an exploded shell in a live impact area on an operational training range as solid waste. But make no mistake about it: whenever and wherever we find evidence of groundwater contamination or migration off that operational range that may contaminate groundwater or sources of groundwater, the Department of Defense deals with it immediately. In fact, EPA, in these initiatives which we have asked for, these proposals which we have asked Congress to embrace, EPA continues in its regulatory role on off-range migration.

Now, you can read all about the great things the Defense Department has done environmentally over the past decade or two. There are awards that have been made to posts, camps and stations all over the country. There's no question that of the 300 endangered species that we currently have in our very biodiverse 30 million acres which we manage in the United States, it has been recognized, whether it's the red-cockaded woodpecker in the Southeast, or the fairy shrimp in the West Coast, or the amount of money that we spend, the nearly $4 billion a year -- $4 billion a year -- that we spend on environmental programs, clearly this obligation is taken seriously by this department.

Now I want to give you all a chance to ask a couple questions. I want to give Ben a moment if you want to say something in a technical sense or how we have drawn --

Cohen: It's the only way I can talk.

DuBois: -- drawn the provisions.

Cohen: Well, first of all, you-all will be able to find a lot of material about this posted on our DENIX website if you want to access that. I think the exact -- Cheryl Irwin either does have or will have in short order the address for that if you all want to visit that.

I'm Ben Cohen, deputy General Counsel for Environment and Installations -- and I've worked on this project with Ray and Paul for the last three years. They've covered, I think, fairly well what the proposals do broadly, and I'm sure we'll have specific questions about specific applications of it in short order. But I would like to just briefly summarize two or three main points about it.

First, it is limited to military readiness activities, and particularly in the case of our RCRA AND CERCLA provisions, military readiness activities on operational ranges. It doesn't apply to other activities that we do, the sorts of activities that have typically been of the greatest interest to state and federal regulators.

The second note, I think, in addition to the narrowness of these proposals, is the aspect of continuity with prior policy. This is a long-standing issue that has been worked by administrations going back probably more than 10 years, and most recently it was just revisited by the prior administration in the Military Munitions Rule adopted by EPA in 1997 and subsequently adopted more or less verbatim by a large majority of the states. This rule embodies the principle that when we use military munitions for their intended purpose on an operational range, that is not a waste management activity for purposes of the Resource Conservation and Recovery Act, the federal waste management statute. It's a common sense proposition. It's one that has been embraced as a regulatory posture by every state and by every EPA under every administration since that statute was enacted, but it's under attack in court cases and it needs to be reaffirmed. So what we are doing basically is building upon and reaffirming that principle in the Military Munitions Rule. We are reaffirming and undergirding against courtroom challenge the regulatory posture of all the states and of EPA since these statutes were enacted.

That's true for CERCLA, the Superfund statute as well. EPA has never at any time regarded the firing of a howitzer on an operational range as a Superfund spill or release requiring a regulatory response for good, common sense reasons, and that principle also has been challenged in litigation. It does need to be reaffirmed before there is, as Paul said, a train wreck.

The second or final issue I would want to point out is that this legislation, although it reaffirms long-standing policies, has been refined over the course of the last several years. In each of our go- rounds before -- when it was submitted to OMB [Office of Management and Budget], when it was submitted to Congress -- we've had a full interagency process in which the interests of all stakeholders have been addressed. The legislation has now been considerably refined. No less than three versions -- this is the third version that we've sent up thus far. That's the product not only of consultation -- of interagency consultation with EPA, but of a very extensive dialogue going back several years with the states, and we have tried to reflect as many of the concerns as we can in this changed legislation to make it clear what it does and does not do, and that it is focused very narrowly on this one question of public policy: how should our operational ranges, how should our military readiness activities be treated under statutes which really were designed for an industrial operation paradigm.

Why don't we open it up for questions now?

Q I have three questions I think will be a good place to start for those of us that don't cover it very often. How many environmental cases are pending against the Defense Department? What if -- sort of that body, what are you dealing with legally? And in the -- over the course of the last three years, how have you scaled back, if you have at all, what it is that you're asking for? So what have you compromised on? And could you give us examples of specific ranges that are at risk? And maybe thin out for us a little bit about what this solid waste problem is? Does it mean that you can't leave a shell on the ground, or does it mean you have to go through some kind of cleanup for it? So, those are the questions.

Cohen: Can I take a first crack?

Q (Off mike.)

SR. DEFENSE OFFICIAL: Absolutely. As far as the first instance is concerned, the case that really has centrally driven our RCRA and CERCLA provisions -- it's one specific litigation at Fort Richardson in Alaska, concerning the Eagle River Flats range. There's a lawsuit there which alleges, or which originally alleged, state law violations through RCRA's waiver of sovereign immunity, so it therefore was, in essence -- had to be claiming that the live-fire test and training at Eagle River Flats was a RCRA waste-management activity; otherwise those state statutes wouldn't have applied; and also alleged that it was a CERCLA release, literally a spill under the Superfund statute -- (inaudible) -- required.

That echoes -- that litigation, by the way, is continuing today. It is ongoing litigation after these years, although there have been settlement discussions. And those echo counts that were alleged as well in litigation at Vieques in Puerto Rico at the naval range there, where again, the plaintiffs came in at a time when this was an operational range and alleged that our live-fire test and training there was a RCRA waste-management activity requiring a permit and a CERCLA release and they requested that the range be shut down. And in fact, that litigation was one of a wide array of attacks on the range that eventually enabled our stay at Vieques to become untenable. So it's important to look back on that history and realize what we are trying to do in protecting our ranges from harassment by litigation. But Richardson is really the key case that is -- has focused our attention.

I do want to say, in terms of the ranges that are under threat, I believe it would be extremely difficult, as a matter of law, to distinguish the training that was done in Vieques, or the training that's done at Fort Richardson in Alaska today at Eagle River Flats, from the training that occurs at any of our ranges. So if the principle is accepted at Fort Richardson, that live-fire test and training is a Superfund spill, or a RCRA waste-management activity, that principle would apply at any of our operational ranges where live-fire test and training occurs.

Q Sir, are you not allowed to have a Superfund spill or do you have to clean it up and then --

SR. DEFENSE OFFICIAL: If there's a release -- what is technically termed a release under the Superfund statute, it triggers a whole chain of regulatory consequences, which can include having to interrupt or end live-fire test and training.

Q And the second question that I had was what have you given up over the course of the last three years? It sounds to me like you've maybe narrowed what it is that you're asking for.

Cohen: The changes are basically designed to better reflect the limited intent of the department behind this legislation. And the changes have been almost entirely in the RCRA and CERCLA provisions.

When we first introduced the language, it gave rise to widespread concern on the part of the states and some public commentators that we were actually trying to use it to exempt our closed ranges or our contractors or Department of Energy facilities or our non-readiness activities, like our waste water treatment plants, our power generation, our mass transit. None of that is the case. Our intent always, from 2002 on, has been only to address the regulatory status of our live-fire testing and training on an operational range, not once the range closes, not any other activities of us or our contractors or our sister agencies.

But we have, I think, in the course -- largely through a dialogue with the states and also with EPA, we have, I think, been able to crystallize that a lot better in the language that we're putting forward this year.

DuBois: What was never our intent -- our interlocutors said: Would you agree to change this word or modify that clause or phrase? And when it became clear that they wanted it to make certain with respect to our commitment, then we made those changes. So there have been several edits --

Cohen: Each time.

DuBois: -- each time, based on feedback that we had from the Hill and from the states and from other folks. And so we've tried to make it better.

Cohen: And I think it really is very valuable, I think, in terms of focusing the debate, because we'll no longer be talking about side issues, things that should never have been issued, like closed -- issues like closed ranges. We will instead be focusing the debate where it should be, which is, do we want to reaffirm 30 years of regulatory policy at the state and federal level, or do we want to stand by and watch while people use the courts to reverse 180 degrees that long-standing policy?

Mayberry: I think also that a part of what some years ago, when we came up with -- I'll say RRPI I -- there was a real outcry of all of a sudden these initiatives had been dropped on the Hill.

Part of what we have been doing since then is an outreach program, an educational process, on both sides; that people could react specifically to the language that we put forward, we could understand what their concerns were -- in this case, predominantly at the state level -- they could also understand what the -- the readiness implications here and this -- and the severity and the seriousness of that.

And so since we have had the original RRPI, we've gone through in a rather extensive outreach process with state and local governments, as well as the environmental stakeholders in the process.

Q Actually, I did have a question.

DuBois: Wait a minute. There are some folks on the telephone, are there not?

Q Yes.

DuBois: Who is on the telephone? Could you identify yourself, please?

Q Can you hear me?

DuBois: Yes.

Q It's Elizabeth Shogren with The Los Angeles Times.

DuBois: All right, Elizabeth, I'll give you the next question, then we'll go back to the audience here.

Q Oh, that's kind. I'm wondering why you think this time things might be different on the Hill? Or do you expect to be able to win some support for this time around? Have you been given any sense that the climate might be more receptive?

DuBois: Well, as you know, Elizabeth, the particular jurisdictional issues are crucial to these particular amendments and these particular statutes. While it is incumbent upon the Department of Defense to ask for amendments through our legislative process, that is to say to go to the House and Senate Armed Services Committees, our authorizing committees, it is the Congress's prerogative, obviously, to have the jurisdictional matters addressed by multiple committees. In this case, in the House it would be the Energy and Commerce Committee. And in the Senate -- as well as the House Resources Committee. And the Senate it's going to be the Environment and Public Works Committee.

Your question as to do we anticipate a more sympathetic reception this year vice the last years, I think it's important to recognize the last two years the issue of whether these three particular amendments would be adopted got caught up in jurisdictional matters.

We have worked with the House and the Senate to try and lay out a plan whereby we would testify in front of whatever committee or subcommittee they required, whether it was Resources or Energy and Commerce in the House, or Environment and Public Works in the Senate, to, in our view, these -- as I indicated in my opening remarks, these three amendments are no less important than they were three years ago, and we think with the modifications that we've made over the last three years, improved them and have satisfied a number of our critics, quite frankly.

So I don't want to predict what will be the reception, other than we've been told that -- and we've been thanked if you will, to have made these modifications.

Now, Elizabeth, why don't you hold off. I've got a couple of other folks here who want to ask a question. I'll get back to you in a minute.

Q Thank you.

DuBois: Yes, sir.

Q John Heilprin with the AP. I'm wondering, the fact that you are seeking these changes through Congress, is that a tacit admission either that you can't win in court or that the legal arguments of environmental groups are correct?

Cohen: No, it's not an admission of any kind. In fact, the department's position has always been what is reflected in fact in these amendments, which is why we think that -- that's why we characterized them as confirming policy, confirming the legal status of our military tests and training on our operational ranges. And in a perfect world it wouldn't be necessary, but because lawsuits have been filed at important ranges like Eagle River Flats and Vieques, and because some of the plaintiffs who filed litigation at Eagle River Flats have in fact threatened a wholesale campaign against military installations across the country, getting back again to the point that Paul made, we don't feel that we can responsibly wait for a train wreck of the sort that happened in the litigation at Farallon de Medinilla during the Afghan war, where a range was literally enjoined by the district court in wartime.

Mayberry: Let me also -- I'll go back to a statement that I made three years ago. When we looked at all the possible environmental encroachment situations, conditions and challenges that this department had, each of the three military departments had, we decided -- and I will call it the Cohen rule because Ben was the first one to articulate this, although it's been modified a couple of times -- the Cohen rule said that in order for us to go to the Congress, an issue had to pass through three gates.

The first gate was, did it have a direct impact on readiness? The second gate was, would it have a negligible or in some cases a positive impact on the environment? Or to put it in the negative in both of those first two cases, if it didn't have a direct impact on readiness, it didn't make it. If it had a negative impact on environmental conditions, it was rejected. The third piece was, we looked at executive orders, we looked at regulatory fixes in the executive branch, we looked at how we could deal with DOI [Department of the Interior] or EPA [Environmental Protection Agency] or NOAA [National Oceanic and Atmospheric Administration], and if the only way to address the legal/court situations was through legislation, that was the third gate. In these cases, we thought each of what -- each of the proposals that we've had, including the three this year, that legislation was the only way that we could address the legal -- litigation issues that we were facing.

Cohen: So, I mean, we and EPA have done what we can. I mean, EPA has already acted by regulation in that area. But -- and of course we have our longstanding interpretation that the Justice Department has before it on our behalf in court under this administration and the previous one. But it's, in our view, insufficient to safeguard against the risks posed by litigation.

Q If I can just follow with a natural follow to what you just said, as you probably are well aware, many of your critics say that you don't need these changes because you already have the power -- (inaudible) -- already believe the secretary already has the power to do this, to claim an exemption.

DuBois: Are you talking about the "God Squad" process?

Cohen: No that's Endangered Species --

DuBois: All right.

Q Yeah, that's just Endangered Species.

But I think that -- isn't that correct legally, that the secretary actually has the power to --

Cohen: The president, under the RCRA statute, right. But that raises an important philosophical and practical question, which is: Should it be necessary for the Department of Defense at all of our operational ranges in the United States doing live-fire testing and training that we have done as long as we've had an armed force, and which we will have to continue to do in the future as long as we have armed forces, should it only be possible to do that activity by grace of a presidential waiver, an emergency waiver that Congress clearly intended to be limited in time and place, and to be used only for the most extraordinary circumstances?

The Department of Defense thinks not, clearly not. And I can't imagine that the Congress, when it enacted RCRA, intended that our live-fire testing and training at all of our ranges only proceed by virtue of the president of the United States on an annual or biannual basis having to certify that it was in the paramount interests of the United States -- the highest standard known to law -- for all of our units to do any of their training anywhere in this country.

We've had experience with the use of this exemption before on one occasion, when we lost a court case not even regarding what we actually were doing at a particular classified installation, but whether the classified activities there and highly classified information had to be released to the public under the terms of an annual congressional reporting requirement. The District Court, in our view, in a clearly erroneous decision had adopted an extremely wooden interpretation of that requirement that said: No, you can't classify the report to Congress, you can't classify the report to the public. I don't care how highly classified the report is -- or how highly classified the information is, it has to go out to the world.

And ever since that time -- 1997, I believe -- the president has annually had to certify that it was in the paramount interests of the United States not to go forward with that.

Now, the litigation -- some of the litigation involving this exemption is highly interesting, because in one instance there's language in a Court of Appeals decision that says that the president's determination about paramount interests of the United States would be subject to legal challenge and review. So courts would be able to look behind the president's determination and use their good judgment as to whether it was in the paramount interest of the United States that this particular activity go forward.

It also held that not an activity but only a place could be exempted. So we might be able to exempt a particular range, but it's not at all clear, if the reasoning of this case is followed, that we'd be able to exempt any training which took place at the range, even though the training was the source of the waste.

In the one occasion earlier, in 1980 I believe it was, when President Carter attempted to invoke exemptions from a whole host of environmental laws to deal with a flood of refugees from the Caribbean into the United States, he wanted to divert them to Camp Allen in Puerto Rico. He issued a finding under, I think, five or six -- perhaps more -- of our environmental laws, again, making the kind of high finding, paramount interest of the United States, that work could go forward to settle these refugees or to prepare Camp Allen in Puerto Rico for the settlement of these refugees.

The day he signed that exemption, it was enjoined in district court. The injunction was reversed in the court of appeals, and the reversal of the injunction was stayed by the Supreme Court. So it went back to court in San Juan, where it was litigated.

By this time, there was a new administration in power. President Reagan renewed the finding that it was in the paramount interest of the United States for this activity to go forward. It was enjoined again. The lawsuit dragged on for years. And the short answer is, no work, not one bit of work, was ever done at Camp Allen in Puerto Rico, notwithstanding findings by two successive presidents, under a host of environmental laws, that it was in the paramount interest of our country that the work go forward.

Q Can you --

DuBois: The interest that -- the lesson the Department of Defense takes from that is that these are not viable. This is not a viable route.

Mayberry: Let me say that simply readiness activities are a day-in, day-out occurrence. It is not a one-time deal where President Carter is trying to get refugees into a specific place.

We train 24 by seven at every installation throughout the United States, throughout the world. This truly is an inappropriate public policy means to go about trying to address a much broader problem that we are trying to get at, specifically and very focused, from military readiness activities, as a result of the types of initiatives that we're putting forward in RRPI.

DuBois: Now let's see. Okay.

Q Just some basic facts. One, how many operational ranges are affected by this?

Cohen: Potentially all of our operational ranges would be affected by the litigation.

Q And how many --

Q Do you have a number on that?

Mayberry: Let me see if I can help you out here. We just submitted a report in terms of an inventory of our ranges. We call them range complexes because at Camp Pendleton, for example, there are multiple ranges at one given location. So these complexes can, in fact, more equate to installations, but across the Army, Navy, Marine Corps and Air Force, about 525 ranges.

DuBois: Yes, that would probably be the case.

Mayberry: That is correct.

DuBois: But again, what (the briefer) said, range complexes. You might have 10 or 15 ranges on a given installation.

Q And 525 were live fire exercises?

DuBois: Yes. And remember, a range can be a small arms range. What we're really concerned about are our artillery range and our bombing ranges.

Cohen: We also characterize these ranges as to exactly what was done, and so this inventory collected things like what was done there, air to ground, at Pendleton, land maneuver, land impact, land firing ranges, ocean operating areas. So there are the types --

Q Is that a list that is publicly available?

Cohen: It is publicly available. I don't know if it's on the website at this point or not. But it is a public document that came out in February of this year.

DuBois: You've just got to understand that in the United States alone there are 96 very large military installations. There are another 300, quote, "large" military installations, and there are another 4,500 military installations, everything from a quarter-acre with an antenna on it, to Fort Bliss, you know, which is, depending upon how you look at the connection to Los Alamos, you know, a million acres. I always get asked by the secretary, "How many installations do we have?" "Well, boss, how do you want to define it?" Each one of those installations, except for the quarter-acre where the antennas are, has -- we have actually a range in the Pentagon, a pistol range.

Q I just had another quick follow-up. You had mentioned that during Operation Enduring Freedom there was an instance that affected training. Between that time and Operation Iraqi Freedom, have there been any other instances where training has been interrupted or affected in any way?

Mayberry: Actually, I believe as recently as last week the department entered into a settlement agreement at our Makua range in Hawaii which required a significant reduction in the amount of training that a Marine unit was going to take, a reduction of a third, and imposed on an ongoing basis similar restrictions on all Army training. That is an Army range that the Marine Corps unit was going to borrow for that period. Those restrictions were imposed on a continuing basis on all Army use of that range, as well.

Q Were these Marines headed off to Iraq, or were there any instances that --

Mayberry: These Marines were going to participate in an exercise in the Western Pacific. They will be deploying later this year. So it did impact their ability to contribute in this coalition multinational exercise.

DuBois: Yeah, wait a minute. Besides Elizabeth Shogren, is there anyone else on the telephone?

Q Yes, Mary Claire Jalonick from CQ. I just had a question -- if you could detail a little bit more about the exemptions with the Clean Air Act and what exact part of the act would be exempted, and just a little bit more of an example of why that's needed.

Cohen: The exemption -- it's an amendment to Section 176C of the Clean Air Act, which is a fairly obscure provision called "general conformity." It applies only to actions by federal agencies, not to the private sector or the states, in regions of the country that are in non-attainment for purposes of one of the criteria pollutants under the Clean Air Act. And what it currently provides is -- what our proposal provides, it gives more flexibility under the Air Act by allowing DOD and the state a three-year grace period to accommodate or offset emissions from new military readiness activities.

And to give you an example: If we were going to be basing a new weapons system in a non-attainment area, right now we would be blocked from even beginning that activity by this inflexibility in the general conformity provision. What this would allow the state to do is accommodate the new military readiness activity in its state implementation plan -- which is a fairly lengthy process; hence the three-year period of our grace period -- if it chooses to do so. The state could always tell us no, we don't want to accommodate this in our state implementation plan, in which case, obviously it would make no sense for us to even begin to take advantage of the three-year window.

Q Could I follow up on that?

DuBois: Yeah, go ahead.

Q You said if the state chooses to do so. Would the state still be required to attain the same levels of pollutants; meaning, would it have to find other polluters who would pollute less to balance out the pollution that you guys would be contributing to the state's air?

Cohen: (Off mike) -- three-year period, DOD would have had to somehow -- DOD and the state would in fact have to have arranged matters so that the increase in emissions attributable to the new military readiness activity was in fact countered by some offset or accommodated in the state implementation plan. So the substantive requirement that the state would have to meet with its implementation plan would not be changed. During the three-year grace period, the state would not be charged for those increased emissions, nor would DOD, nor would any other source in the region. But bear in mind that the new emissions in question during that three-year period are only the emissions from the military readiness activity. In other words, to take Paul’s example of basing the Joint Strike Fighter, it's only the emissions associated with the time those aircraft are in the air flying. It's not building new hangars for them. It's not building new runways. It's not operation of the flight line or the new mass transit for the new pilots that are brought to the base. So the emissions in question are going to be only a negligible portion of air budgets for emissions that run into the thousands of tons.

DuBois: But in the final analysis, what we were trying to achieve was a situation by which, with this three-year grace period, the states wouldn't get punished. And especially those of you who understand the BRAC process, if we are moving around, rationalizing our infrastructure to a force structure, we ought not, in our view, be constrained to moving force structure within a non- attainment area. But we recognize that within three years we've got to have accomplished what the state's levels were supposed to be in the first place. Is that a reasonable way to put it?

Yes, ma'am. You had a question.

Q Oh, yeah. I'm not an environmental reporter, but what I just heard you say -- (laughs) -- you know, what it sounds like is that you're asking for permission to pollute more than the Clean Air Act allows for three years. Is that right?

Cohen: There will be a small -- there is the possibility of a small increase in emissions from these military readiness activities. Most of the emissions that would be associated with the new activity are going to be captured by the Clean Air Act regulatory process: the manufacturing that's necessary, the construction that's necessary to bring the new unit in. But a small portion of emissions theoretically could be released during the three- year period, or whatever portion of it we're actually able to start operating the planes, and that's why it's important to characterize this as a measure that gives flexibility to the states.

DuBois: And it's not necessarily --

Cohen: If they decide that they don't want that increase in emissions, they can tell us to go away and we will.

DuBois: And it's not necessarily that you would increase emissions for all three years. But if we needed to move a squadron of F-16s into the area, where in terms of the BRAC process we were rationalizing and realigning this force structure, we want the flexibility to do that while we pull out other airplanes; either retiring them, or if the Joint Strike Fighter is coming in as the new contributor to the inventory while we pull out old F-15s, there might be a period of overlap. It might last a month. It might last a year. But that's why we wanted that flexibility to say give us some time to adjust.

Q Just to be crystal clear, the answer to Elizabeth Shogren's question, is it that you're asking the feds to give the states, in their SIP [state implementation plan] plans, flexibility by not having to count the added emissions that you might create during the three-year period, or that they have to -- so they can bump up what's allowed under their SIP, or they have to offset it somehow?

Cohen: They have to offset it at the three-year period --

DuBois: (Off mike) -- implementation plan.

(Cross talk.)

Q What's your cap here?

Cohen: At the end of the three-year period, the total emissions in that air shed from us and everybody else have to be fully compliant with applicable Clean Air Act requirements. So at the end of that period, either we will have had to find offsets ourselves or buy credits or -- you know, or else the state will have had to go to some other source and say, "There are going to be 40 tons more of emissions from this military readiness activity, so you, utility, are going to have to reduce your emissions of the same pollutant by 40 tons." So at the end of the three-year period, the status quo will have been restored.

During the three-year period, any emissions that are associated with the actual military readiness activity itself won't count against us, the state or any other sources. So it's for the -- it is a three- year grace period.

DuBois: The anticipation that it's negligible. It has been said: It's only when that airplane is flying. It's not building the new generator to power up the new part of the installation that has the new hangars for the new airplane.

Q Right. I understand what -- you're predicting that the impact will be negligible. But just to be clear that the offset not necessarily has to be Pentagon; it can be --

Cohen: The state has discretion.

Q The state can take it out of a power plant somewhere, if they want to.

Cohen: Yes, but they have to find it somewhere by the end of the three years. They -- it's not a permanent increment in emissions.

DuBois:: I'm going to have to leave in a minute. I've got to go up to the Hill.

Q Can I just ask one little point? I'm curious. Why do you use the Joint Strike Fighter as an example?

Cohen: Well, the Clean Air Act conformity provision has basically two basic paradigms where it would be of particular use to us. One of them is where we -- it's useful to us in the situation where we start a new activity, and there are two paradigms when we do a new activity --

DuBois: It's a new aircraft that'll enter the inventory.

Cohen: Yeah.

DuBois: The new aircraft enters the inventory. It doesn't necessarily replace at that precise time an old aircraft going out of the inventory.

Now the other interesting thing to note here is, remember the Rumsfeld doctrine on capabilities. One new aircraft may have the same capabilities as two old aircraft. So we will bring in one new aircraft and eventually pull out of the current inventory two old aircraft. We may end up in a particular non-attainment area with less NOx [nitrogen oxide] entering into the atmosphere in -- over time, and that's why we need some measure of flexibility in terms of that timing, so that the state doesn't get punished.

Q Okay. All right. I just -- I thought maybe there was something special about the -- (inaudible). (Laughter.)

DuBois: Little slow of you.

Q I have a quick question. If you don't get this legislation passed, what impact it might have on these bases as BRAC approaches? I mean, is this at all tied into the BRAC discussions and the BRAC --

DuBois: As you know, in the BRAC selection criteria, we had to take in consideration environmental issues. But as a practical matter and a political matter, we have asked Congress for these amendments for this express purpose of military readiness. It does not connect to the assessment, the analysis that will go on over the next year.

Now you've asked another -- another part of your question is, what happens if the Congress in this legislative cycle doesn't adopt our proposals? I believe that we are at risk, as the learned counsel has explained in detail, for further litigation, which, remember: successful one place, it's applicable every place. And that's a jeopardy that I don't think this department ought to place itself in.

Cohen: And so specifically, with response to your question about BRAC, because it's a threat to all of our ranges equally because the legal theory the plaintiffs have deployed at Richardson could equally apply at every range in the United States, it wouldn't have a differential impact and be a discriminator for purposes of the analysis. I think that's the point (the other briefer) was making.

DuBois: I'm going to leave. One more question before I go?

Q Could you make your case on this basis; Vieques closed, and its last couple of years or last 18 months of use was severely limited in how it could be used. And yet in the time that all that was happening, the U.S. launched and won two wars in record time. So I think someone might be able to point to the Vieques closing and say it didn't really affect readiness. And the Navy said it wasn't that important after all and is looking for other bases and, you know, is doing more internationally. So why is this such a readiness danger?

Mayberry: Well, in fact, the Navy has come up with significant alternatives that try to bring together live training, virtual training and constructive training in a much more complex, more robust training environment than they've ever experienced in the past. And it truly is getting into coalitional and joint issues, which are opportunities that the naval gunfire support at Vieques was not able to address.

These are tremendous readiness impacts as our forces must train the way that they intend to fight, and that is in a joint and combined coalitional context. And it will be key that as we go forward, that we train exactly like we fight.

Q I'm sorry, but the first thing you said makes it sound like things have actually improved with the closing of Vieques because it forced the Navy to be a little bit creative and they've come up with a better answer than Vieques was.

Maybery: That's correct. And it is a combination --

Q So couldn't somebody say wouldn't the same thing happened if you shut down the other bases --

Mayberry: All of them?

Q -- or some of the other bases?

Cohen: The theory being used at Richardson, as I say, it's applicable everywhere. We might be able to work around a shutdown of the Eagle River Flats range at Fort Richardson; we cannot live with the imposition of this legal doctrine on a widespread basis at all of our ranges.

STAFF: I think we have time for two more questions. I'll take Mr. Heilprin and whoever is on the phone.

Q Yeah, just one of the other prevalent criticisms has been that at the same time that you asked for this, that you also say that -- and it's kind of a -- sort of a broader question of what she was saying -- just that readiness is at one of its highest levels. So if readiness is at such a high level --

Mayberry: How do you think we got to this level of readiness? I mean, the reason that our forces are the best in the world bar none is because we train more often, we train to higher standards and we train in realistic combat conditions. Now, those conditions can be in live settings, they can be in virtual settings, where we have individuals in simulators, and they can be in constructive situations, where we're training staffs by computer modeling and simulation. What we as the department are really pushing forward is the way we go forward of transforming training and the preparation of our forces for the full range of combat scenarios now is really this environment, this synthetic environment that brings all of these together, live, virtual and constructive. And that is the reason that our forces are ready today and must continue to prepare in that environment.

But let me say that none of these can stand alone and to themselves. We can't bring live forces together and train staffs. That's using a lot of soldiers just simply as pawns in the process. We can't do everything synthetically via simulations. We wouldn't want to train our sons and daughters and license them to drive on the Beltway as a result of a video game. We don't want, the first time in combat, that that would be the first opportunity that you'd ever experienced live fire. But we also have complex command-and-control operations that we also need to train in terms of computer simulations, and the only way that we can really get at that is via modeling and simulation.

So the answer really is, how do we bring all of these together to have a much greater transformed training process that can allow our forces to deploy anywhere for any mission.

Cohen: But can I also just sort of rephrase your question? Because it's one, you're right, that has been thrown at us quite a bit. In fact it's been said, if the United States won World War I, World War II, we fought the Vietnam War, we fought Desert Storm, we fought all these wars without these Defense Department amendments and won almost all of them, so why is there a problem?

The answer to that is that it stands reality virtually on its head. I mean, these environmental statutes, except for the Migratory Bird Treaty Act, weren't in effect for the wars that the United States fought before the 1970s. The interpretations of these statutes, as I pointed out at the beginning, that are being advanced by the plaintiffs in court have never been the state of the law. It has never been the case that any regulator has said, "I want you to get a RCRA permit for your Howitzers on these installations. I want you to treat every time you fire that Howitzer as a CERCLA spill."

The status quo, the circumstance that has given rise to the superlative training that we have now and the superlative readiness of our forces, it is that legal and regulatory status quo that these plaintiffs are trying to overturn. So that's why we feel a responsibility to go to the Congress and say, you see the legal and regulatory regime that has enabled us to protect readiness while we protect the environment; it's under siege. We need you, Congress, to clarify that this is not what the law was meant to do.

STAFF: I think that's as much time as we have for this. There's one last thing that I'd like to tell you, that the website is https://www.denix.osd.mil/RRPI. I'd like to thank Ray DuBois, Dr. Paul Mayberry, and Ben Cohen. I thank you all.

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